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B-144072, OCT. 11, 1960

B-144072 Oct 11, 1960
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BON: REFERENCE IS MADE TO YOUR LETTER DATED MAY 16. YOUR LETTER WAS REFERRED HERE FOR REPLY. YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON DECEMBER 29. SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED. "/2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE. YOU AGAIN WERE ADVISED THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION INASMUCH AS MORE THAN TEN FULL YEARS HAD ELAPSED SINCE THE DATE THE CLAIM FIRST ACCRUED. WHICH WAS ALLOWED. IT APPEARS THAT ANY CLAIM YOU MAY HAVE FILED AT AN EARLIER DATE WAS ADDRESSED TO THE DEPARTMENT OF THE ARMY. SINCE WE HAVE NO RECORD OF RECEIVING A CLAIM PRIOR TO DECEMBER 29.

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B-144072, OCT. 11, 1960

TO MR. ROMEO H. BON:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 16, 1960, TO THE SETTLEMENT DIVISION, FINANCE CENTER, U.S. ARMY, RELATIVE TO YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY BELIEVED DUE INCIDENT TO YOUR DISCHARGE FROM MILITARY SERVICE AS A PHILIPPINE SCOUT ON MARCH 9, 1949. YOUR LETTER WAS REFERRED HERE FOR REPLY.

YOUR CLAIM FOR ADDITIONAL MUSTERING-OUT PAY WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON DECEMBER 29, 1959, AND ON JANUARY 19, 1960, THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE RETURNED THE CLAIM TO YOU WITH A COPY OF THE ACT OF OCTOBER 9, 1940, WHICH PROVIDES AS FOLLOWS:

"/1) EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF THIS TITLE, SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.

"/2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

IN A LETTER DATED APRIL 8, 1960, YOU AGAIN WERE ADVISED THAT YOUR CLAIM WAS BARRED FROM CONSIDERATION INASMUCH AS MORE THAN TEN FULL YEARS HAD ELAPSED SINCE THE DATE THE CLAIM FIRST ACCRUED.

IN YOUR PRESENT LETTER YOU STATE THAT YOU PRESENTED A CLAIM AS EARLY AS 1953, BUT THAT DUE TO LACK OF INFORMATION YOU CLAIMED A "DIFFERENTIAL PAY.' YOU ALSO REFER TO A CLAIM PRESENTED BY A WINIFREDO G. FRILLES, A FORMER PHILIPPINE SCOUT, WHICH WAS ALLOWED.

IT APPEARS THAT ANY CLAIM YOU MAY HAVE FILED AT AN EARLIER DATE WAS ADDRESSED TO THE DEPARTMENT OF THE ARMY, SINCE WE HAVE NO RECORD OF RECEIVING A CLAIM PRIOR TO DECEMBER 29, 1959, A DATE MORE THAN TEN YEARS AFTER YOUR DISCHARGE. THE FACT THAT IN 1953 YOU MAY HAVE FILED A CLAIM WITH THE ARMY WOULD NOT SATISFY THE REQUIREMENTS OF THE ACT OF OCTOBER 9, 1940.

AS TO MR. FRILLES' CLAIM, IT WOULD APPEAR FROM THE COPY OF HIS LETTER, ACCOMPANYING YOUR LETTER, THAT HIS CLAIM WAS PRESENTED WITHIN THE TEN-YEAR LIMITATION PERIOD.

THE STATUTE EXPRESSLY PROHIBITS CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF CLAIMS FILED HERE LATER THAN TEN FULL YEARS AFTER THE DATES SUCH CLAIMS FIRST ACCRUED. ANY RIGHT TO THE ADDITIONAL MUSTERING-OUT PAY CLAIMED FIRST ACCRUED TO YOU ON MARCH 9, 1949, THE DATE OF YOUR DISCHARGE. THE TEN-YEAR PERIOD EXPIRED ON MARCH 8, 1959.

THE LIMITATION, PRESCRIBED BY THE STATUTE, UPON CONSIDERATION OF CLAIMS BY OUR OFFICE, IS NOT A MERE STATUTE OF LIMITATIONS BUT IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE CLAIMS CONSIDERED BY THE GENERAL ACCOUNTING OFFICE. SEE BARTLESVILLE ZINC COMPANY V. MELLON, 56 F.2D 154, AND CARPENTER V. UNITED STATES, 56 F.2D 828. CONSEQUENTLY, NO EXCEPTIONS MAY BE MADE TO THE PROVISIONS OF THE STATUTE NOR MAY ANY EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED BE GRANTED. SEE 25 COMP. GEN. 670; 32 ID. 267.

ACCORDINGLY, YOU ARE ADVISED THAT THE ACTION TAKEN IN RETURNING YOUR CLAIM WAS IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, AND NO FURTHER ACTION CAN BE TAKEN IN THE MATTER BY OUR OFFICE.

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